A. A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it:

(1) consists of or comprises immoral, deceptive or scandalous matter;

(2) consists of or comprises matter that may disparage or falsely suggest a connection with persons living or dead, institutions, beliefs or national symbols or that may bring them into contempt or disrepute;

(3) consists of or comprises the flag, coat of arms or other insignia of the United States or of any state, municipality, foreign nation or any simulation of these;

(4) consists of or comprises the name, signature or portrait identifying a particular living individual, except by the individual's written consent;

(5) consists of a mark that:

(a) when used on or in connection with the goods or services of the applicant, is merely descriptive or deceptively misdescriptive of them;

(b) when used on or in connection with the goods or services of the applicant, is primarily geographically descriptive or deceptively misdescriptive of them;

(c) is primarily merely a surname; provided, however, nothing in this subsection shall prevent the registration of a mark used by the applicant that has become distinctive of the applicant's goods or services. The secretary may accept as evidence that the mark has become distinctive as used on or in connection with the applicant's goods or services, proof of continuous use of it as a mark by the applicant in this state for the five years before the date on which the claim of distinctiveness is made; or

(d) consists of or comprises a mark that so resembles a mark registered in this state or a mark or trade name previously used by another and not abandoned, as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake or to deceive.

B. A mark is deemed to be abandoned when either of the following occurs:

(1) when its use has been discontinued with intent not to resume that use. Intent not to resume may be inferred from circumstances; nonuse for two consecutive years shall constitute prima facie evidence of abandonment; or

(2) when any course of conduct of the owner, including acts of omission as well as commission, causes the mark to lose its significance as a mark.

History: Laws 1997, ch. 197, § 4.